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County of Somerset v. Durling

Decided: March 31, 1980.

COUNTY OF SOMERSET, PLAINTIFF,
v.
THEODORE W. DURLING, HARRIET E. DURLING, AND JOHN CATON, DEFENDANTS. JOHN CATON, THIRD-PARTY PLAINTIFF, V. LILLIAN F. BELLOWS, THIRD-PARTY DEFENDANT



Dreier, J.s.c.

Dreier

This is a quiet title action by the County of Somerset. Third-party defendant Lillian F. Bellows (Bellows) has moved for summary judgment dismissing defendant third-party plaintiff John Caton's (Caton) claim against her for indemnity based upon an alleged breach of warranty or misrepresentation.*fn1 The question here discussed, of novel impression in New Jersey, is whether certain statements in an affidavit of title are legally sufficient to support liability of the seller-affiant Bellows, where one or more such statements are alleged to have been unintentionally inaccurate when made.

On December 5, 1973 Bellows delivered a deed to two lots in Hillsborough Township to Caton. Pursuant to the contract of sale the deed was in the form of a bargain and sale deed with covenants against grantor's acts, and was accompanied by an affidavit of title in the usual form, all prepared by the counsel for seller. See, e.g., 13A N.J. Practice (Lieberman, Abstract & Titles) (3 ed.), § 1698 at 185, and 14 N.J. Practice (Lodge, Legal Business Forms (2 ed.)), § 5 at 13. Subsequently Caton conveyed the lots by warranty deed to plaintiff Somerset County,

which brought this action to quiet its title against a claim by defendant Theodore W. Durling (Durling) of ownership in fee simple to part of one lot and an easement over the other. Plaintiff claims that if Durling is successful in his claims, Caton is liable for its loss. Since many of Durling's claims, if valid, would have been perfected prior to the conveyance by Bellows to Caton, Caton in turn asserts that if he is liable to plaintiff, Bellows is liable to him, not under any deed covenants,*fn2 but for misrepresentations in her affidavit of title.*fn3

The affidavit of title signed by Bellows has only four statements which are not qualified or modified by phrases such as "to her knowledge" or "she is informed and believes." Caton argues that these statements, being absolute, are essentially warranties, the breach of any of which is sufficient to support Bellows liability, even if such breach is innocent or unknowing. In the alternative, he urges that the inaccuracies present in the affidavit

are sufficient to show equitable fraud. See Foont-Freedenfeld Corp. v. Electro Protective Corp. , 126 N.J. Super. 254 (App.Div.1973), aff'd 64 N.J. 197 (1974). Caton's position is alleged to be bolstered by the affiant's statement that

The four relevant unqualified statements or warranties are as follows:

Lillian Bellows being duly sworn say[s] . . .

[1] that she is now in possession and the owner in fee simple of the [lots] . .

[2] that the said premises have been held by her for T.I. [Tract I] -- 30 years. T. II [Tract II] -- 2 years. last past, and that her possession thereof ...


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